'Network Neutrality' Ruling Gives FCC a Chance to Revise Regulations

NEWS ANALYSIS: The Federal Communications Commission's network neutrality rules lose out on a narrow technical issue rather than on claims the FCC didn't have authority to regulate broadband carriers.

The U.S. Court of Appeals for the District of Columbia focused on narrow, technical grounds to overturn the Federal Communications Commission's rules requiring non-discriminatory, non-blocking access to the Internet.
However, the court avoided the broader assertions by Verizon that the FCC does not have the authority to regulate broadband providers, saying that it was clear that the FCC does, in fact, have the authority.
The problem, according to the court is that the FCC had applied common carrier rules to an entity that isn't a common carrier. "That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates," the three-judge appeals panel said in the introduction of its opinion.
Initially, the court's finding was greeted by cries around Washington that an Internet apocalypse had just happened. Net neutrality is dead, the press releases cried. Immediate action is required today, said other equally distraught press releases. Headline writers echoed those frightening words.

But as is frequently the case in Washington, reality isn't in the press releases. Rather, it is in the complete opinion, which lays out the very limited grounds where the FCC is wrong in its approach. Notably, the appeals court's opinion rejects the vast majority of Verizon's arguments that claim the FCC has no right to regulate at all.

"The court rejected Verizon's position that Congress did not give the Federal Communications Commission jurisdiction over broadband access," said Randall Milch, Verizon executive vice president, public policy and general counsel, in a prepared statement. "At the same time, the court found that the FCC could not impose last century's common carriage requirements on the Internet, and struck down rules that limited the ability of broadband providers to offer new and innovative services to their customers."

The court remanded the decision to the FCC for further action, but in the meantime broadband providers are no longer bound by the net neutrality rules.
"We will consider all available options, including those for appeal," said FCC Chairman Thomas Wheeler in a prepared statement, "to ensure that these networks on which the Internet depends continue to provide a free and open platform for innovation and expression, and operate in the interest of all Americans."
"This clearly puts this order back in Chairman Tom Wheeler's lap," said Timothy Karr, senior director of strategy for advocacy group Free Press, in an interview. Karr said that while his organization was disappointed in the outcome, he felt the decision was correct. He said that the problem was that the FCC initially hadn't grounded its net neutrality rules in the law the way it should have, leading to this decision.